AuthorKarin de Vries
4.1 Genuine and determining occupational requirements ( Article 4)
In the Netherlands, national legislation provides for an exception for g enuine and
determining occupational requirements.
Race, sex. In the GETA, the exception for genuine occupational requirements (‘GOR
exception’) only exists for the g rounds of race and sex. A s far as race is conc erned, this
has been laid down in Article 2(4) of the GETA:
‘The prohibition of making distinctions on the g rounds of race as it is contained in
this Act, shall not apply:
a. in cases where a person’s racial appearance i s a determining factor, provided
that the aim is legitimate and the requirement is proportionate to that aim;
b. if the distinction concerns a person’s [outward] racial appearance and
constitutes, by reason of the nature of the particular occupational activity
concerned, or of the context in which it is carried out, a genuine and
determining occupational requirement, provided that the objective is legitimate
and the requirement is proportionate to that objective.’205
In contrast to Article 4 of Directive 2000/43/EC, which speaks of a characteristic related to
racial or ethnic origin, the Dutch provision specifies that only outward racial appearances
may constitute a genuine occupational requir ement.206 This m eans that ‘race’ as such is
not regarded as a permissibl e ground for a particul ar distinction.207 Only physical
differences (skin colour, hair type, etc.) may form the basis for a distinction, to the
exclusion of sociological differences. The GETA does not, for example, allow a care
institution, which looks after the well -being of young offenders of Moroccan origin, to
express in a job advertisement a pr eference for a so cial worker of Moroccan origin.208 On
the basis of Article 4(6) GETA, these exceptions have been set out in a Governmental
Decree of 1994.209 Th e Decree exhaustively in dicates to which pr ofessional activities the
Article 2(4) exceptions apply. These are:
a. The profession or activity of actor, dancer or artist insofar as the profession or activity
relates to the performance of a certain role (elaboration of subsection b);
b. Mannequins, models for photograph ers, artists, etc., insofar as requirements can
reasonably be imposed on outward appearances (elaboration of subsection b).
Religion, belief, sexual orientation. Although Article 4(1) of Directive 2000/78/EC
would hav e allowed for it, no GOR e xception h as been enshrined in the GETA for these
grounds. However, in the context of the exceptions of Article 5(2) of the GETA, institutions
founded on r eligious principles, or on political principles, o r schools fou nded on the basis
of a religious denomination may impose requirements in relation to the occupancy of a
post which, in view of the organisation’s purpose, are necessary to uphold its founding
principles. However, the Article 5(2) GETA exceptions were not rationalised by the idea of
‘genuine occupational requirements’. They were regarded as necessary in order to reconcile
205 Subsection b was inserted by the EC Implementation Act. With this amendment the government intended to
follow the wording of the directive more closely. See Explanatory Memorandum to the EC Implementation
Act, Tweede Kamer, 2002-2003, 28 770, no. 3, p. 10. However, prior to implementation the ‘genuine
occupational requirement exception’ was also covered by the more general wording of subsection a of
Article 2(4).
206 Explanatory Memorandum to the EC Implementation Act, Tweede Kamer, 2002-2003, 28 770, no. 3, p. 10.
207 Gerards, J. H. and Heringa, A. W. (2003), Wetgeving gelijke behandeling (Equal treatment legislation),
Deventer, Kluwer, p. 129.
208 See ETC 1997-51.
209 Governmental Decree on Equal Treatment (Besluit Gelijke Behandeling), Staatsblad 1994, 657, last
amended in 2012: Staatsblad 2012, 565.

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